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ELCPartially AllowedELC No 10 of 2015 (lead file), consolidated with ELC No 22 of 2015· [2024] KEELC 1798 (KLR)

Anthony Kamau Wanjohi v Wagakoru Ngando & Wagakoru Kamau (Consolidated with ELC No 22 of 2015)

Environment and Land Court
12 April 2024
2,424 words in judgment
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The bottom line

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Kenya's Environment and Land Court ordered two families' jointly owned land split into equal halves, ruling that long occupation by one co-owner does not erase the other's share.

What this practically means

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Executive summary

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Two suits over Land Parcel Kiine/Ruiru/35 were consolidated with ELC No 10 of 2015 as the lead file. Anthony Kamau Wanjohi, legal representative of the estate of Wanjohi Ngando, sought by Originating Summons rectification of the register to reinstate his father as proprietor in common to a half share, alleging that the administration of the estate of Macharia Ng'ang'a had distributed the entire land to Wagakoru Kamau. Wagakoru Kamau, by his own plaint, sought cancellation of the cautions impeding partition of his registered half share. The court framed two issues: whether the tenancy in common could be severed and whether the cautions should be cancelled. The evidence showed the parcel was held by Wagakoru Kamau and Wanjohi Ngango as tenants in common in equal shares following the 1993 succession, and the tenancy was never severed. The court held, applying Section 94 of the Land Registration Act and Muhuri Muchiri, that the common tenancy should be severed by partition, and rejected the Applicant's adverse possession claim, holding that possession cannot run between co-owners absent severance or partition. The cautions were held unjustified because the cautioners' beneficiary interests would be protected upon partition and succession distribution. The court ordered severance, partition into two equal portions registered in the names of the deceased co-owners, cancellation of the cautions, and each party to bear their own costs.

Key legal issues

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01

Whether the tenancy in common over LR Kiine/Ruiru/35 could be severed

Holding

Yes. Both co-owners agreed on severance and Section 94 of the Land Registration Act empowers partition; the court ordered severance and partition into equal shares registered in the names of the deceased co-owners pending succession distribution.

Reasoning

The uncontroverted evidence showed Macharia Ng'ang'a and Wanjohi Ngando were registered as tenants in common in equal shares in 1962, and after 1993 succession Wagakoru Kamau and Wanjohi Ngango were registered as tenants in common. The tenancy was never severed. Both parties agreed to severance. Section 94 empowers partition of land held in common, and Halsbury's and Muhuri Muchiri confirm the modes of termination. The court found no valid reason to impede partition and ordered the severance and subdivision.

p. 5
02

Whether the Applicant's long occupation gave him title by adverse possession extinguishing the Defendants' rights

Holding

No. Adverse possession cannot run as between tenants in common where there has been no severance or partition; each tenant is entitled to occupy any portion pending partition.

Reasoning

The Applicant relied on Section 7 of the Limitation of Actions Act, claiming possession since 1962. The court held that in an unsevered common tenancy, no tenant is entitled to a specific portion, and each has a right to occupy any portion pending partition. Occupation by one co-owner is therefore not hostile or exclusive against the other, and cannot extinguish co-owners' rights. The claim of limitation accordingly failed.

p. 5
03

Whether the cautions lodged against the title should be cancelled

Holding

Yes. The cautions lacked justification since the cautioners' claimed beneficiary interests in Wanjohi Ngango's half share would be protected upon partition and succession distribution.

Reasoning

The partition had been impeded by cautions lodged by the Plaintifi, his brother and Njeri Macharia. The court found the beneficiary interests claimed related to Wanjohi Ngango's interest as common tenant, which would be taken care of upon partition and transmission to beneficiaries. As both parties agreed severance was warranted, there was no valid reason to maintain the cautions, and they were ordered cancelled.

p. 6

Legal principles established

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  • Adverse possession is not available as between tenants in common where there has been no severance or partition of the land.
  • A tenancy in common may be terminated by partition, by acquiring the interests of another co-owner, or by sale of the common property and division of proceeds.

Court orders

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  1. 1.The common tenancy of Wagakoru Kamau (½ share) and Wanjohi Ngango (½ share) of Land Parcel Kiine/Ruiru/35 is ordered to be severed.
  2. 2.The Land Registrar, Kirinyaga is ordered to cause the sub-division/partition of Land Parcel Kiine/Ruiru/35 into two equal portions to be registered in the names of Wagakoru Kamau (deceased) and Wanjohi Ngango (deceased) pending distribution to beneficiaries of the deceased pursuant to succession.
  3. 3.The cautions registered by Njeri Macharia and Anthony Kamau Wanjohi and/or any other person are ordered to be cancelled.
  4. 4.Each party to bear their own costs of the consolidated suits.

Authorities

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Legislation

  • Land Registration ActSection 94(1), 94(2), 94(3)(a-j)
  • Limitation of Actions ActSection 7

Cases cited (2)

  • Iga v Makerere University
    (1972) E.A 65
  • Muhuri Muchiri v Hannah Nyamunya (Sued as the Administrator of the Estate of Njenga Muchiri (Deceased)
    (2015) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land; partition of tenancy in common under Section 94 of the Land Registration Act, 2012

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Anthony Kamau Wanjohi v Wagakoru Ngando & Wagakoru Kamau (Consolidated with ELC No 22 of 2015)", Case Analysis (2024). ELC No 10 of 2015 (lead file), consolidated with ELC No 22 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1798/eng@2024-04-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.